Is it brandishing?

[Marauder2003]

Given the spate of home event threads today I have a question.

Is it considered brandishing if you are visibly holding a gun when you answer your front door?

[ldsnet]

See the statute here:

http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=417

Lots of sections and details, but the guts:
(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:

You may not consider the gun at your side a threat, but if the person at the door feels fear, and sees it as a threat then yes you have met all the pieces of brandishing. The exception "except in self-defense" which means you need to prove you were already in fear for your life or about to receive great bodily harm . . . You can't escalate the situation then claim self-defense.

It will be a cop on the scene and a D.A. deciding if your actions meet the definition and a jury deciding if a "reasonable person" would feel threatened or fear in the same situation as your "victim"

I am NOT a lawyer, this is NOT legal advice. It was one of the easier statutes to explain in the police academy (in 2008). If you need further info, then please speak to an attorney to understand the details of the law and any case law that may be out there.

[Barbarosa]

It probably depends on who they believe, you or the one who complains. To brandish you have to act in, "...a rude, angry, or threatening manner...". You would be much better to keep the gun out of sight until you determine if it is safe or not.

What if it is the police?

[Calico1404]

Oh, you actually open your door?

peephole.jpg

[Mayor McRifle]

Only if you do it in a rude, angry, or threatening manner, and a similarly-situated person would not have been in reasonable fear of imminent death or great bodily injury. But keep in mind that most reasonable people would not fear imminent death or great bodily injury when answering the door. If they did, most reasonable people wouldn't answer the door at all.

In general, bad idea.

[RickD427]

Given the spate of home event threads today I have a question.

Is it considered brandishing if you are visibly holding a gun when you answer your front door?

It easily could be. Here is the text of the pertinent part of California's brandishing statute:

"Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows..."

Please note that it is only necessary to "exhibit" the firearm in a "rude, angry, or threatening manner". There is no requirement that the weapon be directed toward the victim.

Assuming that you conduct yourself as the nicest guy on the planet when you open the door, you may be able to dispose of the "rude" and "angry" elements. But the "threatening" element still remains (we only need one of the three for a conviction). The key question is whether the guest at the door would reasonably feel threatened by your firearm.

The law does provide an exemption for "self-defense", but you're going to have a hard time convincing a jury that every person knocking on your door presents a sufficient threat.

The best practical advice is that if you really feel compelled to arm yourself when answering the door, is to ensure that your weapon is not visible. If the weapon is not "exhibited" then then can be no "brandishing" of that weapon.

On an unrelated note, we often see comments in this forum questioning whether folks who unintentionally "print" while carrying a concealed weapon are guilty of "brandishing." A quick review of the above elements should confirm the answer as "No." In the case of inadvertent "printing", there is no "rude, angry, or threatening manner."

[tanks]

...

Assuming that you conduct yourself as the nicest guy on the planet when you open the door, you may be able to dispose of the "rude" and "angry" elements. But the "threatening" element still remains (we only need one of the three for a conviction). The key question is whether the guest at the door would reasonably feel threatened by your firearm...

Interesting, if someone has his firearm on his belt in his own home (open carry), would it still be considered brandishing if the person at the door felt threatened. Seems pretty subjective to me, I would not feel threatened but an anti-gun lib might (heck, they feel threatened if there are guns in the County belonging to Citizens ).

[P5Ret]

Interesting, if someone has his firearm on his belt in his own home (open carry), would it still be considered brandishing if the person at the door felt threatened. Seems pretty subjective to me, I would not feel threatened but an anti-gun lib might (heck, they feel threatened if there are guns in the County belonging to Citizens ).

Is it realistically I'd say no. However keep in mind that we are in private persons arrest territory here, and no matter how much talking explaining or whatever is done by the officer, some people insist on making that arrest. Now that does not mean anything will come of it, and the chances of you walking out of it with a civil judgement against the person arresting you are pretty good. There will be written documentation of statements by both involved parties, as well as 849 b1 of the penal code that allows the officer to release you from custody, if he or she feels that there is insufficient grounds for the arrest, I know I've used it more than a few times, when people are insisting an arrest be made, despite the lack of elements of the offense.

The thing to remember is that there are people who will piss themselves at the mere mention of the word gun, and if you have the misfortune of having one of them knock on your door, while you are legally armed in your home, no telling what kind of stories they will tell.

[hermosabeach]

take a step back-

If you feel the need to have a gun in your hand... DON'T OPEN THE DOOR

Chain latches, Camera based door bells work fine



Another step back- Criminals steal guns from unoccupied homes... now people know you have a gun.... now they just need to find out when you are not at home... and steal your entire safe + other stuff

[omgwtfbbq]

take a step back-

If you feel the need to have a gun in your hand... DON'T OPEN THE DOOR

Chain latches, Camera based door bells work fine.

[DDM4556]

take a step back-

If you feel the need to have a gun in your hand... DON'T OPEN THE DOOR

Chain latches, Camera based door bells work fine



Another step back- Criminals steal guns from unoccupied homes... now people know you have a gun.... now they just need to find out when you are not at home... and steal your entire safe + other stuff

Agreed. But if the guys says "Fedex" and is wearing the uniform, then you're going to need to open if you want your package. You could find out that that guy is just a lunatic who stole a Fedex uniform...

I always ask questions through the door first. But I have had a gun in hand behind my back when I've opened the door. I won't show it, but its there.

[onelonehorseman]

take a step back-

If you feel the need to have a gun in your hand... DON'T OPEN THE DOOR

Chain latches, Camera based door bells work fine



Another step back- Criminals steal guns from unoccupied homes... now people know you have a gun.... now they just need to find out when you are not at home... and steal your entire safe + other stuff

Camera's/intercomm . . never a need to let the person see you until you are reasonably sure they are not a threat.

[Fuge]

Oh, you actually open your door?

[ATTACH]501145[/ATTACH]

Finally , someone with common sense.

[Jimi Jah]

Under California law, anyone openly carrying in Arizona is brandishing.

[RickD427]

Interesting, if someone has his firearm on his belt in his own home (open carry), would it still be considered brandishing if the person at the door felt threatened. Seems pretty subjective to me, I would not feel threatened but an anti-gun lib might (heck, they feel threatened if there are guns in the County belonging to Citizens ).

You're right, it is pretty subjective. Most cases that go to criminal trial involve a lot of subjectivity. That's why there are 12 folks on a jury and they have to all agree.

I have approved arrests for brandishing where the firearm never left the suspect's waistband, and the involved deputies have gone on to win criminal convictions. But in each case there was some specific threat made by the suspect to use the weapon. I'd be kinda hard-pressed to think of an example where a holstered firearm alone would amount to a violation.